Duke  University  Libranes 
I  II  I  III  I 


D032 


2461J 


fejj    s't 


REPORT. 


Mr.  GRAY,  from  the  Judiciary  Committee,  to  which  was 
referred  the  following  resolution,  to-wit : 

"Resolved,  That  the  Committee  on  the  Judiciary  be  in- 
structed to  inquire  and   report  what  legislation  is  necessary 

to  enable  officers  in  the  Army  of  the  Confederate  Stat. 
hold  their  seats  in  the  Congress  of  the  Confederate 
or  whether  they   are  entitled  to  do  bo  under  the   Constitu- 
tion  without    any   legislation,''  made   the   following  report, 
viz  : 

The  Committee  on  the  Judiciary  have  considered  the 
resolution  instructing  them  "  to  inquire  and  report  what 
legislation  is  necessary  to  enable  officers  in  the  Army  efthe 
Confederate  States  to  hold  their  seats  in  the  Congress  of  the 
Confederate  States,  or  whether  they  are  entitled  bo  to  do 
under  the  Constitution  without  any  legislation. "  and  a  ma- 
jority report:  That  the  terms  of  the  resolution  seem  to  be 
answered  by  the  recital  of  a  part  of  the  2d  par:  f  the 

6th  section  of  the  1st  article  of  the  Constitution,  It  con- 
tains the.-e  words,  to-wit:  "And  no  person  holding  any 
office  under  the  Confederate  States  shall  be  a  member  of 
either  House  during  his  continuance  in  office/'  The  array 
of  the  Confederate  .Mates  is  an  establishment  created  bv 
and  organized  under  authority  of  the  Confederate  Con- 
gress, according  to  its  power  "  to  raise  and  support  armi 
and  its  officers  are  commissioned  by  and  subject  to  the  di- 
rection and  control  of  the  President  of  the  Confederate 
States  as  its  Commander-in-Chief.  That  such  officers  are 
"persons  holding  office  under  the  Confederate  States,  ap- 
pears to  be  a  simple  matter  of  fact  under  the  laws,  and  it 
necessarily  folloAvs  that  they  cannot  hold  seats  as  members 
of  either  House  of  Congress.  No  legislation  can  entitle 
them  to  do  so,  for  it  would  be  manifestly  in  violation  of  the 
prohibition  recited.     The  purpose  of  that  prohibition  seems 


obvious ;   and  when   taken  in  connection  "with  the  preceding 
clause  of*  the  same  paragraph,  which   prohibits  the  appoint- 
ment of  any  member  of  Congress  to  any  civil   office,  which 
shall   have   been   created,  or   the   emolument   whereof  shall 
have    been    increased   during   the   time   for  which   he   was 
elected,  thai  purpose  is  fully  manifested.     It  was  to  prest 
the  independence  of  the  Legislature  as  a  co-ordinate  branch 
of  the  Government — to  prevent   the  exercise  by  the  same 
persons  of  functions  appertaining  to  distinct  departments — 
to  render  the  Legislature  free  from  executive  influence,  and 
to  remove  from  its  members  the  temptations   which   might 
arise   from   hope  of  executive  favor  or   patronage.     It  re- 
quires  no   extensive   knowledge  of  the  history  of  Govern- 
ments; ami  of  the  undue  influence  of  Executive  power  over 
Legislative  ho, lies  to  perceive   the   wisdom  of  this  purpose. 
To  no  class  of  officers    does  it  apply  with  greater  force  than 
to  those  of  the  army,  for  none  others  are  more  directly  un- 
der  Executive    control.      Moreover,   there  appears  to  he  an 
incompatibility  in  the  exercise  of  the  functions  of  a  member 
of  Congress  and  an  officer  of  the  army.     It  is  not  practica- 
ble to  discharge  legislative  duties  in  Congress  and  military 
duties  in  the  field,  or  bureaus,  at  the  same   time.      If.  then. 
the  power  existed  so  to  legislate  as  to  entitle   officers  of  the 
army  also  to  hold  seats  as  members  of  Congress,  it  would, 
in  the  opinion  of  the   committee,  he  an   unwise   exercise  of 
such  power. 

Having  thus  answered  the  exact  terms  of  the  resolution, 
it  may  be  that  the  committee  has  discharged  its  duty.  But 
they  are  informed  that  it  was  the  intention  of  the  resolution 
to  inquire  whether  there  is  any,  and  what  difference  there 
may  he,  between  the  case  of  officers  of  the  Provisional  Army 
and  that  of  those  in  the  regular  service,  and  therefore  have 
also  considered  that  point. 

The  regular  army  is  composed  of  officers  holding  their 
appointments  directly  from  the  President,  and  of  soldiers 
enlisted  for  a  definite  period,  and  is  an  establishment  cre- 
ated by  the  Confederate  States  of  a  permanent  character. 
The  provisional  army  is  composed  of  volunteer  soldiers  for 
short  terms,  or  for  the  war.  unless  sooner  discharged,  and 
of  volunteer  officers  who  also  hold  their  appointments,  either 
directly  or  indirectly,  under  the  authority  of  the  laws  of  the 
Confederate  States.  It  is  an  establishment  of  a  temporary 
character,  but  created  under  the  same  power  to  raise  armies, 
as  is  the  regular  army.     Their  organization,  pay,  and  gov- 


i 


ernment  is  the  same.  It  is  true  that  a  part  of  the  Provi- 
sional Army  is  composed  of  volunteer  soldiers  who  were 
at  first  in  the  service  of  their  respective  States,  and  whose 
officers  were  appointed  by  their  respective  States.  But 
they  became  a  part  of  the  Provisional  Army  of  the  Con- 
federacy under  the  law  authorizing  the  President  '-to  re- 
ceive into  the  service  of  this  Government  such  forces  now 
in  the  service  of  said  States,  as  may  be  tendered."  &c;  and 
by  the  same  law  it  was  declared  that  "  such  forces  may  he 
received,  with  their  officers,  **  and  when  so  received  shall 
form  a  part  of  the  Provisional  Army  of  the  Confederate 
States,"  and  also  that  they  should  have  the  same  pay  and 
allowances,  and  ho  subject  to  the  same  rules  and  govern- 
ment as  the  army.  It  is  likewise  true  that  in  another  act 
providing  for  the  public  defence,  the  President  was  author- 
ized to  ask  for  and  accept  volunteers,  and  it  was  declared 
that  the  volunteers  might  be  accepted  "in  companies,  battal- 
ions, and  regimentB,  whose  officers  shall  be  appointed  in 
the  manner  prescribed  by  law  in  the  several  States  to  which 
they  shall  respectively  belong."'  But  by  the  same  act  it 
was  declared  that  "  when  inspected,  mustered,  and  received 
into  the  service  of  the  Confederate  States,  said  troops  shall 
be  regarded  in  all  respects  as  a  part  of  the  Army  of  said 
Confederate  States."  Now,  though  the  officers  of  these 
volunteer  troops  may  have  originally  received  their  ap- 
pointments from  their  respective  States,  yet  the  troops  be- 
ing raised  by  virtue  of  Confederate  laws,  and  the  appoint- 
ments made  by  virtue  of  the  same  laws  when  received  into 
the  service  of  the  Confederate  States  under  these  laws.  they. 
to  all  intents  and  purposes,  became  officers  in  the  army  of 
those  States,  and  held  their  offices  under  them.  From  the 
time  of  their  entering  the  service  they  "  in  all  respects" 
became  a  part  of  the  Army  of  the  Confederacy,  subject  to 
the  same  control,  entitled  to  the  same  rules  of  promotion 
and  removal,  and  liable  to  the  same  disabilities  during  the 
time  of  their  service,  as  officers  of  the  regular  army.  They 
are  not,  therefore,  entitled  to  hold  seats  as  members  of  Con- 
— .  but  are  subject  to  the  Constitutional  prohibition  in 
letter  and  spirit,  and  no  further  legislation  can  entitle  them 
to  do  so.  ~   T.  W.  GRAY, 

A.  H.  GARLAND, 
J.  W.  MOORE, 
THOS.  P.  ASHE, 
J.  B.  HEISKELL, 
E.  S.  DARGAN. 


The  undersigned  members  of  the  committee  assent  to  the 
conclusions  of  "he  above  report,  so  far  as  relates  to  offii 
of  the  regular  and  provisional  armies  commissioned  by  the 
President ;  but  the  undersigned  think  that  officers  of  volun- 
militia  holding  commissions  from  Governor's  of 
States,  only  are  eligible  to  scats  in  this  House. 

'       '  LUCIUS  J.  GARTRELL, 

CHARLES.  W.  RUSSELL. 


Hollinger  Corp. 
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